Improved performance the Lance Armstrong way? EPO?
Summary: The European Patent Office claims growth, quality and so on, but people who are working close to the system or inside the system are not believing it
THE European Patent Office (EPO) forms an alternate version of reality. It lies to the world, it misleads journalists, it talks nonsense (like so-called ‘results’ [1, 2]) to the Council (which is already growingly suspicious of these 'results'), and it even lies to its own staff.
Meldrew, a patent lawyer who comments a lot in IP Kat, wrote a rebuttal to these ‘results’ a year ago. To quote portions of his rebuttal:
[...] application numbers reflect not only the innovation within Europe
As a final point it is worth noting that the term “patent filings” used in previous press releases is now thoroughly discredited as a useful measurement of anything. Combining European applications made and PCT applications made has little relevance to demand for European patents, as is indicated by the ever declining proportion of PCT applications that enter the European regional phase [a further indication that Europe has to come to grips with its place in the world].
In an effort to improve transparency the EPO will henceforth cease using the misleading “patent filings” metric and instead will quote numbers that mean something.
Speaking to some attorneys (other than Meldrew and Joeri Beetz who is cited above), it seems clear that a lot of them know that the EPO isn’t frank about its so-called ‘results’, to say the least. “I don’t believe them either,” told us one of them. “Nor do any of the EPO examiners. It’s Battistelli bullshit. The figures are basically more or less static.”
To quote further:
What’s worse than turd-polishing the productivity figures is the EPO’s indifference to (or possibly lack of understanding of) the quality of the EPO’s output. EPO search and examination reports still look good superficially, but the analysis in them is just getting shallower and shallower. As a patent attorney, you can’t simply believe what the examiner writes any more – you have to check everything in detail, and it’s surprising how often they are wrong these days. That’s when the examiner bothers to give any analysis at all, of course – it’s more and more common for them simply to state that something is just standard knowledge for the skilled person, without giving any evidence or reasoning. This is all good for patent attorneys, because it makes more work for us, but the effect for the client is that they either have to pay much higher total costs or accept narrower patent protection. Both of these options represent a large increase in business costs for the client – all for a marginal gain in EPO “productivity”.
Another bugbear of mine is the indifference to the practical needs of applicants. Nearly all major patent organisations have now made efforts to embrace the possibilities of modern technology and commerce. They accept online payments, they accept communications by email, they issue automated email alerts if a deadline is imminent. If you call them, they put you through to a human being who can answer your question immediately and intelligently. The EPO has done nothing to address these issues. You still can’t pay fees online, the EPO will not provide priority documents electronically, they don’t do anything official by email, if you call them, someone will call you back in a day or two. Espacenet has been neglected, with virtually zero improvement for a decade, to the point where Google Advanced Patents is now a superior searching and reference tool. Battistelli has been so focused on internal matters and “productivity”, with his bizarre nineteenth century vision of industrial relations, that the EPO is slipping further and further behind the competition. The EPO even closes down entirely between Christmas and New Year, unlike most other patent offices in the civilised world. That’s not for the applicants’ benefit – that’s pure administrative cost saving, and to hell with public service. It’s worth noting that the French patent office, INPI, also only started making significant advances in customer-friendly online services once Battistelli had stepped down as director general. The sooner he stops messing about with the EPO’s internal organs and starts focusing on the needs of applicants, the better.
We heard similar stories from an inventor in the UK. Satisfaction with the EPO’s services seems to be low, but the EPO cites its friends at IAM to claim otherwise. We have some articles about that on their way (shelved for now). █
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The Patent Busting project/initiative/campaign, which abolished one patent at the time nearly a decade ago, a long-forgotten strategy
Image credit: Electronic Frontier Foundation (EFF)
Summary: Patent trolls are still the subject of criticism from the Electronic Frontier Foundation, even though some major companies such as Apple and Microsoft (even those that pay the EFF) are a big part of the problem with patents, and software patents in particular
YESTERDAY we published this article which covered jurisdiction reform as a path to mitigation/cessation of patent trolls, who habitually use software patents (still granted by the USPTO where there is no effective quality control) as a weapon in the Eastern District of Texas. The USPTO doesn’t seem to mind over-litigation as it helps drive demand at the patent office*.
The EFF has just published this recommendation (authored by Elliot Harmon) of the VENUE Act, which uses jurisdiction as a factor by which to throttle/impede trolls. Here is what the EFF wrote:
There’s a new bill in Congress that would finally address the egregious forum shopping that dominates patent litigation. The Venue Equity and Non-Uniformity Elimination Act of 2016 (VENUE Act, S. 2733) would bring a modicum of fairness to a broken patent system.
Forum shopping is a phenomenon that can appear when plaintiffs get a lot of latitude over which federal district to file a case in. Some plaintiffs make their choice based not on what federal district has the strongest connection to the dispute, but rather on which court they believe they have the best chance of winning in. A canny plaintiff will exploit differences between courts in her favor—differences in how they enforce certain rules, for example, or in their track records with a type of case. As anyone knows who’s been following the patent reform debate for very long, forum shopping runs rampant in patent cases.
The EFF correctly points out that this would not solve the problem but only slow it down a bit. What the EFF really needs to do is campaign against software patents — something which clearly it hasn’t been sufficiently interested in (we wrote a lot about this before, either praising or criticising the EFF’s approach/strategy). Justin Blows, a patent lawyer who likes software patents, writes that “Google has been awarded US patent 9,280,534 titled “Generating social glossary”. Broadly speaking, the invention is about scanning social media for new expressions and storing them in a glossary.”
This is similar to a Facebook patent which we recently covered here. Why are such software patents being granted in the first place? A clue might be in the footnote below. █
* “A PTO official said to me after my talk that trying to think about IPR with an overlay of prosecution will do nothing but harm,” wrote patent maximalists the other day. “He’s right,” they added. It sure seems like the wolf has been put in charge or the sheep of the wolf is guarding the hen now. They want more patents and more prosecution which drives demand for patents (elevating perceived value of patents).
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Summary: Microsoft started the week (last Monday) with openwashing of the proprietary Minecraft and misuse of the AIX brand; journalists played along
ALMOST exactly one week ago (on Monday) Microsoft did something rather horrible, but were we too busy to write about that, as it wasn’t so urgent to respond to (coinciding with EPO milestones and an Administrative Council meeting).
“That’s just the same old Microsoft.”Belatedly, we now wish to respond to a pattern of misleading coverage by corporate media. A lot of it started with an article from IDG (several of its many sites, e.g. ). IDG apparently does not know what Open Source means and it even uses a dash in it, as in “open-source”. Microsoft money well spent on IDC ‘studies’ (IDG owns IDC)? It this just shoddy journalism or intentional deception? Well, soon thereafter the Microsoft UK-dominated BBC also issued some puff piece about it . Why are journalists who don’t really know what “Open Source” is covering such things? At the direction of Microsoft perhaps? Are they simply being fooled by Microsoft? Also, why has “The Official Microsoft Blog – Microsoft” entered Google News  as though it is a news source? What’s next? The EPO’s own ‘news’ section already gets treated as news at Google News, even though this section — along with the Official Microsoft Blog — are not news sites; these are sources of deception and PR. It is ‘news’ about oneself. This is what the stories appear to have been based on. It is utterly disgusting to see journalists falling for it. Microsoft has many moves and strategies against GNU/Linux at the moment, but corporate media does absolutely nothing to highlight these. As can be seen in [4-11] (a partial list), some silly PR stunt about Minecraft got a lot more coverage than any of the recent attacks on Linux (combined). Only a few blogs cover the attacks, none of which in the corporate/mainstream media.
A noteworthy thing here is that Microsoft labeled its latest openwashing campaign “AIX”. This is Microsoft hijacking names/brands of competitors again. It couldn’t have done this by accident. Calling it “open source” in media even when Minecraft is proprietary?! And when AIX is quite clearly an operating system of another company? This is googlebombing and it’s bound to confuse a lot of people, probably by intention. How long before Microsoft releases some tiny component of its proprietary stuff as “open” and calls it “GNU”, then bombards the media with puff pieces about it?
With headlines such as “Microsoft to open up Minecraft world for AI developers through open-source AIX program” what will be the fate of the real AIX, which has existed for a very long time? How about the headline “Microsoft Project AIX is an open source Minecraft-based artificial intelligence solution”? Or Slashdot with “Microsoft to Open Source Minecraft-Based Project AIX”? “Microsoft Open Sources its AI Development Platform” says the headline from a Microsoft apologist. That seems like very old news, re-announced. A week ago, on Monday morning, I found no less than a dozen Microsoft openwashing pieces (see some of them at the bottom). There must have been many more since. What happened to journalism and why is this openwashing campaign not subjected to any proper fact-checking? Increasingly, over the years, we have come to the conclusion that “fixing” or correcting the corporate media is an exercise in futility. Making alternatives works better. For those who believe that Microsoft is now an “Open Source” company we can only deliver criticism and insults, but we are not trying to gag them. “Balanced” is often a byword for “conforming to widely-held beliefs”. Microsoft is trying to make it a widely-held belief that it’s ethical and “Open Source”. It’s a massive lie. An old Microsoft modus operandi should be worth noting here, as the company habitually hijacks names of the competition (many examples have been covered here over the years). AIX in this case is the latest of many and it’s not going to be the last.
MinceR jokingly wrote, “IBM sold AIX already?”
No, but Microsoft did a hostile takeover of the acronym, regardless of IBM’s need for consent. That’s just the same old Microsoft. █
Related/contextual items from the news:
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Extreme action without permission: Microsoft’s only excuse for this goes along the lines of, “it’s not rape if she enjoyed it”
Summary: In an effort to commandeer the world’s entire PC population Microsoft is simply hijacking PCs that (still) run Windows and forces Vista 10 onto them, installing keyloggers, ads, and sometimes breaking these PCs in the process
A lot of stuff is happening at the Microsoft camp right now, e.g. major new departures, patent shakedowns causing blowback, openwashing (more on that later), moles (also to be covered separately), and forced Vista 10 ‘upgrades’. We weren’t able to cover this until the weekend because it was a very historic/critical week at the EPO.
Several days ago the article “Microsoft upgraded users to Windows 10 without their OK” was published at IDG. It was one of many before it and we are going to assume readers already know the story (it also appeared in British media). The article by Woody Leonhard is noteworthy because it once again demonstrates that even Microsoft proponents — people who write entire books for/about Microsoft — are upset. To put it succinctly: “More worrying, however, is the fact that today’s statement fails to engage with the hundreds of users who claim that their update has started automatically and is a problem.”
“As we showed 9 years ago, Novell was removing pages that disparage Windows or Microsoft from its Web site (right after it had signed the patent deal).”Well, how long before class action?
“Canonical and Red Hat sure are quiet about this opportunity,” iophk told us about such GNU/Linux firms that are suspiciously saying nothing regarding Vista 10, even though or especially when it’s abusing people. Are they competing for Microsoft’s “love” now, in the same way Novell did a decade (or less) ago? As we showed 9 years ago, Novell was removing pages that disparage Windows or Microsoft from its Web site (right after it had signed the patent deal).
One article worth highlighting comes from The Register and the title of the article is “How Microsoft copied malware techniques to make Get Windows 10 the world’s PC pest” (well, technically, in many ways, it is malware, as this GNU page explains).
Microsoft uses techniques similar to aggressive malware to promote its “Get Windows 10” offer.
As many readers have discovered, the persistent and constantly changing methods Microsoft uses to continually reintroduce its “Get Windows 10” tool, or GWX, onto computers means it’s extremely difficult to avoid.
Windows users who decline to use it find it is repeatedly reintroduced. The language of the counter-malware industry is more appropriate than the language of enterprise IT for GWX.
Going further back, touching a topic that we didn’t cover throughly enough, there is also the issue with ads being pushed as part of Windows Update, which is no longer just a security or stability mechanism. People are rapidly losing control of the computers they are buying. Microsoft takes control of more and more components, including the boot sequence. How much more are Windows users willing to tolerate before they put an end to it? The aforementioned issue of forced ‘upgrades’ is not entirely new, it just gets more severe over time and we have been hearing reports about this latest escalation for quite a while (about two weeks now). See this article about Microsoft sabotage:
My PC Upgraded To Windows 10 Without Asking, Then Immediately Broke
It was not seamless. Disaster struck almost immediately, as I logged into my account and was promptly told I couldn’t access any of my files. I’d only spent a few minutes with Windows 10, and already I’d been lied to.
“You’ve been signed in with a temporary profile,” read an error message.
What? I rebooted the computer, thinking it was an errant glitch. No dice. I logged out of my account, thinking it was a simple hiccup. Again, no dice.
For all I knew, Windows 10 had deleted everything on my hard drive.
What kind of person is going to tolerate this? Does it take Stockholm syndrome to continue using Windows?
“People are rapidly losing control of the computers they are buying.”It is quite revealing that Microsoft is having a crisis, so it reduced the price of Windows and now shoves ads into it, shoves the whole lot into people’s PCs (because Microsoft insists that it knows what’s better for everyone), and not many people even bother buying a new PC, as it typically comes with Vista 10 on it (they don’t want malware). As this report put it the other day: “Very few if any ever thought Windows 10 would truly reinvigorate the PC industry, and they were right – IDC has pulled down forecasts on traditional device sales for 2016.” The headline says, “Hey Windows 10, weren’t you supposed to help PC sales?” Well, only if one was to believe IDC, which has a long tradition of lying for Microsoft whilst on Microsoft’s payroll.
Suffice to say, Microsoft sends out its boosters, whom it pays, to do the damage control. The Microsoft Ad Bot (Ed Bott) spreads new FUD against Vista 7 in order to help Microsoft spread Vista 10 and in order to help defend the aggressive, malware-like strategies.
“What kind of person is going to tolerate this? Does it take Stockholm syndrome to continue using Windows?”People who are fed up with above-the-law thugs tinkering with their PCs without their consent (the Federal Government sure isn’t doing anything to prevent Microsoft from doing this) should explore how to install GNU/Linux on their PCs and do this as soon as possible, before Microsoft simply hijacks their PCs and does whatever suits Microsoft best. █
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Summary: Microsoft’s patent extortion against Linux explained in a show from one week ago
SPEAKING of Microsoft "love" and promising exits, as explained either today or in the past week (Microsoft only “loves” Linux by making it Microsoft’s cash cow with software patents and the exits do not constitute a change in strategy), here is a video from 7 days ago. We clipped/cropped the relevant bit (less than a quarter of the whole; the full video can be found here). [via]
An older reminder of how Microsoft does extortion and racketeering with software patents in China can be found here. █
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The legacy of Ballmer and Gutierrez remains at Nadella’s Microsoft
Picture contributed by a reader in 2008
Summary: Reactions to the exit of Horacio Gutierrez and a reminder that Microsoft has implemented no change of strategy as it pressures Linux (with software patents) not only directly
AS we noted in our previous post, more writers now agree with us that Microsoft’s patent aggression against Linux is not acceptable and probably serves as proof that Microsoft still hates Linux. Nearly a week ago it became apparent that the architect of Microsoft’a patent strategy against Linux was leaving. Mike Masnick retweeted Re/code and wrote: “This guy once spent an hour in a conference room lecturing me on just how *amazing* patent licensing is…”
That was the first time we noticed a report about it. It came from the Microsoft booster (who was among the loudest cheerleaders for the patent extortion even way back in her Novell days/era at CNET). Yes, Ina Fried covered it and her employer wrote “Spotify taps top Microsoft lawyer Horacio Gutierrez as general counsel” (it’s pretty big news and it seems like Re/code may have broken the story).
“Based on reports we have been reading, we don’t know if this Microsoft Mafioso has decided to quit his job or Microsoft simply told him to go (being associated with patent extortion/blackmail is enormously detrimental for Microsoft’s public image).”As we mentioned him just two days beforehand (translation in Spanish was posted the following afternoon) we cannot help but wonder if some of our recent articles served to convince him to change jobs or even had Microsoft rethink its patent strategy. In the past month we got about 30 million hits at the cache level, so surely many people read about Microsoft’s patent aggression (we wrote numerous articles about it, going weeks back) and some even wrote their own articles about it (partly inspired by what we had published).
Based on reports we have been reading, we don’t know if this Microsoft Mafioso has decided to quit his job or Microsoft simply told him to go (being associated with patent extortion/blackmail is enormously detrimental for Microsoft’s public image).
Gavin Clarke (historically a Microsoft apologist) has only just noticed — days late! — that this Mafioso left Microsoft. He called him “Linux Inquisitor” in the headline (strong words!) and said:
Linux and Android device makers can breath a little easier: their IP bête noir has left Microsoft.
The lawyer running Microsoft’s intellectual property inquisition, Horacio Gutierrez, has left after 18 years. He’s jumped to streaming service Spotify.
Gutierrez joined Microsoft in 1998 but ran the company’s LCA innovation and intellectual property group between 2006 and 2014.
He was in charge of Microsoft’s legal team on global patents, copyrights, trademarks, licensing, standards and regulatory compliance.
Someone told us in the comments last week: “So, will Spotify now start suing over software patents now that Gutierrez has moved? It’s bad news for Spotify to get “former” Microsofters.”
“Gutierrez was a Mafioso, and like some in the Mafia he was walking around in a suit.”Will they basically become non-practising patent parasites? They’re mostly in the area of copyrights, not patents. In fact, days ago they signed a high-profile copyright deal (beyond the scope of this article).
IAM, to its credit, was also relatively quick to report on the departure of Gutierrez. To quote: “Microsoft’s current general counsel and former head of IP Horacio Gutierrez, who was one of the major players in the company’s lucrative multi-billion dollar per year Android licensing campaign, is leaving his role to take up the corresponding position at music streaming service Spotify. Gutierrez became general counsel and corporate vice president at Microsoft after a reshuffle in November last year which saw his predecessor Brad Smith promoted to company president and chief legal officer. Prior to that – in July 2014 – Gutierrez was appointed corporate vice president and deputy general counsel in the Microsoft legal function’s products and services division.”
Gutierrez was a Mafioso, and like some in the Mafia he was walking around in a suit.
“One way to stop Microsoft’s patent extortion is to make it financially less viable (economically unsustainable) by convincing technology experts (who choose what to buy for their companies) to drop Microsoft contracts, effectively boycotting the company while clarifying that patent aggression is the cause.”Some may be led to believe that Microsoft will soon stop its patent aggression, but there is no indication of it. Moreover, Microsoft still attacks Linux through patent proxies, including some patent trolls. IAM reminded us of RPX the other day, among other trolls (IAM does not say “trolls”, just NPEs and SEPs, who are paying IAM). Several divisions of Microsoft are both SEPs and NPEs. The company acts little better than a patent troll, with a much broader patents pool. Uniloc is now flirting with the Microsoft-connected Acacia. To quote IAM: “Even with the battering that most public IP companies (PIPCOs) have weathered on the capital markets over the last few years, Uniloc’s $189 million offer for Acacia, which was announced earlier today, seems far too low. A few years ago Acacia was a multi-billion dollar business with a licensing model that investors flocked to, and which produced a steady stream of revenues.”
For Microsoft to demonstrate that it is prepared to enter a peaceful co-existence with Linux it will need to not only stop its patent aggression but also stop proxies such as Intellectual Ventures from doing the same thing. One way to stop Microsoft’s patent extortion is to make it financially less viable (economically unsustainable) by convincing technology experts (who choose what to buy for their companies) to drop Microsoft contracts, effectively boycotting the company while clarifying that patent aggression is the cause. █
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Summary: Various journalists and bloggers express dissatisfaction with if not anger and disappointment at Microsoft’s hateful attitude towards GNU/Linux, which it is still attacking using software patents and threats of lawsuits
THERE is definitely growing awareness of Microsoft’s campaign against Linux. That’s progress. The company spent nearly a whole decade attacking Linux with patents, usually keeping a lot of it under the table, or behind NDAs. The secrecy isn’t working too well anymore.
“The Cultural Defeat of Microsoft” is a new essay which, in spite of not touching the patent aspect, helps reveal the core issues which led Microsoft to its patent aggression. Swapnil Bhartiya ‘wakes up’ to this whole situation, having written about this over a week ago (he flip-flopped on Microsoft’s intentions). Based on E-mails we’ve been receiving, many are pissed off at Bhartiya’s very latest article on the subject, saying that it’s akin to a yuppie nuremburg defense (for Microsoft). He spoke of a “section of the open source community that blindly hates Microsoft,” but that’s a fallacy because some people just know and remember what Microsoft has done, there’s no blindness about it. In fact, those who forget or are ignorant about it are blind. We’ll spare the insults here (some people are upset at Bhartiya) and just say that concern about Microsoft’s patent aggression isn’t misplaced and there’s no valid excuse for Microsoft doing this.
In relation to Phipps’ suggestions Bhartiya wrote:
5 reasons Microsoft may never give up on Linux patent claims
There are many reasons why Microsoft may not join the Open Innovation Network (OIN) anytime soon. First of all, if a company doesn’t want to use patents as a weapon, it won’t, whether or not it joins OIN.
At the same time, joining OIN doesn’t guarantee that a company won’t use patents as a weapon. Both Oracle and Google are OIN members and they have locked horns in one of the fieriest battles in the open source world. IBM is one of the founders of OIN and it has also sued companies (like Groupon) over various patents.
So as much as I believe joining OIN sends a positive message, I don’t think that’s _the_ ultimate solution.
This we can agree on. We wrote about the above issues several times before. But the joining (OIN) would at least be symbolic. There is still no indication whatsoever from Microsoft that it intends to stop the patent aggression. None. We shall expand on that point at some later stage and a later post.
Days before Bhartiya, SJVN wrote a similar article
The one thing Microsoft must do – but won’t – to gain open-source trust
So, why are people still paying up rather than fighting? Because patent litigation is incredibly expensive. It’s cheaper to pay a $5 to $15 per device licensing fee than to pay a small fortune and take even a remote chance of failure in court.
And Microsoft? Come on, back in 2014, Microsoft was already making about $3.4 billion from its Android patents. Samsung alone paid Microsoft a billion bucks to license its Android patents. This is serious money even by Fortune 500 standards.
In its last quarter, between volume licensing and patents, Microsoft accounted for approximately 9 percent of Microsoft’s total revenue.
And, that, of course, is why Microsoft is never going to stop charging for its Android patents. So long as the boys from Redmond can milk these patents for billions every year, they’re going to keep them.
An article by Susan Linton from around that time said: “A lot of speculation surrounded and followed Microsoft’s latest announcements with many questioning some its statements and motives. Most surmise it’s only because Microsoft needs Linux and Open Source that it’s changed its tune. Several have said that if Microsoft truly wanted to show its new leaf, they’d stop suing companies for dodgy patent infringement claims. Today Steven J. Vaughan-Nichols stated that’s pretty much how he sees it. Most of the patents Microsoft is suing over are for ideas already in the public domain. Microsoft will never give up that revenue stream. Why should they when companies like Canonical and Red Hat sign deals with them despite their actions? “So long as Microsoft can profit from Android patents while still working with open-source enterprises, the company has no reason whatsoever to change its ways.””
Does anyone believe that this is acceptable? Or that Microsoft “loves Linux” as it wants us to believe? Microsoft does not need to ‘make’ peace with Linux; GNU/Linux was never resisting peace, it’s only Microsoft that’s attacking. Even sites that are full of Microsoft apologists are unimpressed by what Microsoft has done. See the following:
Is Microsoft Trying To Attack Open Source And Linux With Its “Patent Bombs”?
Last week, Microsoft got involved in a legal issue and secured patent licenses from Wistron of Taiwan and Rakuten of Japan around Linux and Android technologies. While Microsoft is already making billions with its patents in Android, its history of Linux-related patent trolling isn’t hidden from anyone. The open source community remains frightened of Microsoft as no one knows who could be the next one to get a notice from Microsoft’s legal guys.
In another case that violates the trust of open source community, Microsoft has recently claimed that it came up with the idea for Continuum and “invented” the concept. On the other hand, Canonical has been working on Convergence since 2013, even though it was never released to the public up until recently.
There’s no doubt that Microsoft has made some serious contributions to the open source community and expressed its love for Linux. However, if Redmond really cares, it should work transparently to win the trust of the open source community as any company’s success in the world of open source depends on its users and developers.
Satya Nadella should also consider joining the Open Innovation Network (OIN) and sending a message the open source world to become a trusted member of the community.
Notice that both the above and the article from Bhartiya say “Innovation Network” rather than Invention Network. They don’t seem to have been keeping up with that area.
The noteworthy thing is, more and more voices now recognise the issue and call for cessation of patent aggression. That’s important progress. █
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European Patent Office: Administrative Council gives the President a bollocking
The Administrative Council of the European Patent Office shows its displeasure with the President of the institution, but does not oblige him to reverse or review decisions.
Before the latest meeting of the Administrative Council (AC) of the European Patent Office (EPO), the AC’s chairman Jesper Kongstad had expressed annoyance at the way EPO President Benoît Battistelli dealt with the staff. He demanded that the recent dismissals and disciplinary measures against leaders of the EPO union SUEPO be subjected to independent review.
Such interventions are now off the table, following the conclusion of the two-day meeting of the AC. While the Administrative Council makes clear that it does not endorse Battistelli’s actions, it nevertheless does not intend to review his decisions. The AC asks the EPO President to ensure in future that his disciplinary measures are seen to be fair, and “to consider” submitting them to external assessors or mediation tribunals for review.
Battistelli to reach agreement with the unions
According to the AC resolution, the staff regulations should be amended, in particular concerning the internal Investigation Unit (IU). Battistelli based his controversial suspension of a patent judge and dismissal of union leaders on work carried out by the Investigation Unit, which had installed keyloggers in publicly-accessible computers at the EPO to track down a person allegedly defaming the Office.
Battistelli must also agree rules for cooperation with both EPO unions. At the beginning of March 2016, the President made a great song and dance of reaching such an agreement, while forgetting to mention that the union in question represented fewer than 100 of the more than 6000 EPO employees. SUEPO, with 3400 members, has so far refused to sign the document, which stipulates inter alia that the union must submit to the internal rules of the EPO – rules which can be unilaterally amended by the Office.
Criticism of efficiency measures and working conditions
A dispute has long been bubbling under at the EPO regarding Battistelli’s drive for efficiency gains, and the related working conditions. Patent examiners are critical of the project, because quickly-granted patents may not have been examined thoroughly, and may therefore be vulnerable to legal challenge. Since 2012, the patent examiners have been resisting plans to pay bonuses out of the Office’s revenue surplus on the grounds that this gives a false motivation for granting patents. The Office’s surplus at that time was 89 Million Euros; this had almost doubled by 2015.
According to EPO rules, employees who are ill must be at their home address from 10am to 12am and 2pm to 4pm every day of their sickness leave. The EPO reserves the right to check on the employee by sending a doctor to visit. An employee who is summoned to a meeting with the internal Investigation Unit is permitted neither to remain silent nor to be accompanied by a legal representative.
The European Patent Office has 38 member countries, including non-EU members such as Turkey and Switzerland. As a supranational organisation, it is not bound by any national law. Its employees therefore do not have the option of taking the EPO to a tribunal in the country where they work, or in their country of origin. In the first instance they must rely on internal procedures, and their only route for filing a formal complaint is at the International Labour Organisation (ILO) in Geneva. The procedure at the ILO can last up to ten years, and the ILO complained in 2015 that it has been flooded with EPO complaints. (ck)
Update (30/3/2016): another translation of this article was published by SUEPO later on
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